United States District Court, W.D. North Carolina, Statesville Division
RICHARD L. VOORHEES UNITED STATES DISTRICT JUDGE.
MATTER is before the Court upon Petitioner Steven Donewan
Carr's pro se Motion to Vacate, Set Aside or Correct
Sentence, 28 U.S.C. § 2255 (Doc. No. 1) and Motion for
appointment of counsel (Doc. No. 2). Also before the Court is
the Government's Motion to Dismiss the Motion to Vacate.
(Doc. No. 4.)
was indicted by a federal grand jury on charges of conspiracy
to possess with intent to distribute and distribution of
cocaine base in violation of 21 U.S.C. §§
841(a)(1), 846 (Count One); two counts of possession with
intent to distribute a controlled substance and aiding and
abetting the same in violation of 18 U.S.C. § 2 and 21
U.S.C. § 841(a)(1) (Counts Four and Five); and
possession with intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a)(1) (Count Six).
Superseding Indict., Doc No. 23. A jury returned verdicts of
guilty on all charges after a trial that ended July 20, 1999.
Jury Verdict, Doc. No. 43. (Superseding Indictment).
Carr's presentence report (“PSR”), the
probation officer calculated a base offense level of 38 under
United States Sentencing Guideline (“U.S.S.G.”)
§ 2D1.1 (1998) because his offense involved over 1.5
kilograms of crack cocaine. PSR ¶ 26, Doc. No. 84.
Although noting that Carr was a career offender under
U.S.S.G. § 4B1.1, based on his prior North Carolina
convictions for breaking and entering and assault on a
government official, the probation officer found that
applying this enhancement would result in a lower offense
level (37), so the higher offense level based on the quantity
of drugs involved in the offense applied. PSR ¶ 34. Carr
had a total of 41 criminal history points, thus his criminal
history category was VI, even without application of the
career offender enhancement. See PSR ¶ 65.
Carr's guidelines range was 360 months to life
imprisonment. PSR ¶ 117. The Court sentenced him to a
total of 360 months of imprisonment. Judgment, Doc. No. 50.
appealed, and the Fourth Circuit affirmed his convictions,
but vacated his sentence in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). United States v.
Carr, 232 F.3d 890 (4th Cir. 2000) (unpublished). This
Court resentenced Carr, again finding that his sentence
should be based on his involvement with over 1.5 kilograms of
crack cocaine. Am. Judgment, Doc. No. 76; see Order
Den. Mot. to Vacate 9-10, Carr v. United States, No.
5:03CV30, 2007 WL 1521106 (W.D. N.C. filed April 5, 2007)
(Doc. No. 19). The Court sentenced Carr to 240 months of
imprisonment for conspiracy; to two 60-months terms to be
served concurrently to each other but consecutively to the
other terms of imprisonment for his aiding and abetting
convictions; and to an additional 60-month term for
possession with intent to distribute crack cocaine, to be
served consecutively, for a total sentence of 360 months of
imprisonment. See Order Den. Mot. to Vacate,
again appealed, arguing that the Court should not have
sentenced him based on his offense involving more than 1.5
kilograms of crack cocaine. See United States v.
Carr, 34 F. App'x 921 (4th Cir. 2002) (unpublished).
The Fourth Circuit affirmed his sentence, including this
Court's determination that Carr was responsible for over
1.5 kilograms of crack cocaine and that his base offense
level was 38. Id.
2003, Carr filed his first Motion to Vacate pursuant to
§ 2255, arguing, in part, that he was actually innocent
of being a career offender. Mot. to Vacate, Doc No. 81. This
Court found that his challenge to the predicate offenses used
to designate him as a career offender was “likely
procedurally defaulted” since he had not objected to
this designation at sentencing, that he had at least two
qualifying prior convictions, and that Carr's designation
as a career offender was “irrelevant” because he
was sentenced based on the offense level for his involvement
with 1.5 kilograms of crack cocaine, which the Fourth Circuit
held was proper. Order Den. Mot. to Vacate, Doc. No. 83. The
Fourth Circuit denied a certificate of appealability and
dismissed Carr's appeal. United States v. Carr,
251 F. App'x 217 (4th Cir. 2007) (unpublished).
2011, this Court reduced Carr's sentence to a total of
324 months of imprisonment based on Amendment 706 to the
Sentencing Guidelines. Doc. No. 141. In 2012, Carr filed
another § 2255 motion, based on DePierre v. United
States, 131 S.Ct. 2225 (2011) (addressing the meaning of
“cocaine base”). Doc. No. 158. The Court
dismissed this motion for failure to obtain authorization to
file a successive § 2255 motion, as well as failure to
show that the motion relied on a Supreme Court decision that
was made retroactive on collateral review by the Supreme
Court. Order Den. Mot. to Vacate, Doc. No. 161. The Fourth
Circuit denied a certificate of appealability and dismissed
Carr's appeal from this decision. United States v.
Carr, 482 F. App'x 862 (4th Cir. 2012).
2012, this Court reduced Carr's sentence to a total of
262 months of imprisonment pursuant to Amendment 750 to the
Sentencing Guidelines. Doc. No. 164. In 2015, the Court
further reduced Carr's sentence pursuant to Amendment 782
to the Sentencing Guidelines to 210 months of imprisonment.
Doc. No. 209.
filed an application for authorization to file a successive
§ 2255 motion with the Fourth Circuit on or about June
22, 2015, see Houston v. Lack, 487 U.S. 266, 276
(1988). (Pet. 4, Doc. No. 1.) In it, Carr argued he was
entitled to relief from judgment based on the Supreme
Court's holding in Johnson v. United States, 135
S.Ct. 2551 (2015). On July 14, 2016, the Fourth Circuit
granted authorization for Carr to file a successive §
2255 motion based on Johnson. (Doc. No. 1-2.)
Carr's motion for authorization to the Fourth Circuit was
filed as his motion to vacate in the present action, and the
filing date was deemed to be the same as that of his motion
for authorization. (Doc. No. 1); see Fourth Cir.
Local Rule of App. Proc. 22(d). Carr also filed a motion
requesting the appointment of counsel. (Doc. No. 2.)
Government filed a Motion to Dismiss, arguing that Carr's
§ 2255 Motion is an unauthorized, successive Motion
and/or procedurally barred. The Government also contends that
Carr's Motion is frivolous. (Doc. No. 4.)
January 3, 2017, the Court entered an Order in accordance
with Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), notifying Carr of his right to respond to the
Government's Motion to Dismiss and providing him 21 days
from receipt of the Court's Order to do so. (Doc. No. 5.)
The Court also notified Carr that failure to reply could
result in dismissal of his § 2255 Motion to Vacate
without further notice. As of the filing of this Order, Carr
has not responded to the Government's Motion, and the
Court finds that he has had ample time to do so.